Important Legal Notice
The information on this website does not constitute specific legal advice and should not be relied on as doing so. Users should contact ThomasMansfield for advice about particular matters. Users should also be aware that laws and regulations might be different outside England and Wales.
Why choose a solicitor to draft a will, power of attorney or conduct probate?
Solicitors are required to go through a long period of training to learn all aspects of the law before specialising in a specific area. Very often different areas of law affect each other, and it is essential to have an awareness of this to give the best service. For example, if you get married, your will is automatically invalidated, showing how family law and inheritance law can affect each other. This means that solicitors are in a better position to determine the most appropriate legal advice for the client’s specific circumstances.
In addition, all solicitors are regulated by the Solicitors Regulation Authority. This means that qualified solicitors have to conform to high standards of client care, they have to abide by rules in relation to fees and handling client money, they have to have a minimum amount of training, they can be disciplined for mismanagement or struck off for dishonesty. In addition, solicitors are required to hold a high level of professional indemnity insurance. Solicitors have a duty toward the court to uphold the rule of law in addition to their duty to clients. Clients of a solicitor can complain to the Legal Ombudsman if they have a complaint about a solicitor’s work.
How can I save paying inheritance tax?
There are many ways in which inheritance tax can be avoided through careful planning. You may like to consider making gifts during your lifetime or establishing a trust. For further information about inheritance tax planning and reducing the inheritance tax burden both before and after death please contact us for further details and to determine the optimum trust for your particular circumstances.
What is the point of a power of attorney?
A power of attorney, now called enduring Lasting Power of Attorney allows you to appoint people you trust to make decisions on your behalf if you lose mental capacity. This could happen due to an accident involving a brain injury or serious illness such as dementia or stroke. There are two types of power; one deals with decisions about finances and one with welfare and care.
What could happen if I don’t make a power of attorney?
If you later become unable to make decisions for yourself for example, after an accident, stroke or through dementia no one will be able to make legal decisions that affect you such as paying the cost of any care. The reason for this is that nobody will be able to access your bank accounts. In this case, an application will need to be made to the Court of Protection so that a deputy can be appointed, which provides similar powers of those of an attorney under a power of attorney. This process is a lot more expensive and time consuming than preparing a power of attorney and often takes months.
Ideally, everyone should have a power of attorney drafted for themselves no matter what their age because we cannot foresee when an accident will happen or the onset of a serious illness.
Once I complete the forms do I lose control?
No. The social care power only come into affect in the future if and when you lose mental capacity. You can choose when the financial power comes into affect so that your attorneys can make decisions for you now and/or later. However, even if you choose to allow the executor of a financial power to help manage your finances now it does not mean you lose control.
Do I need a solicitor to draft a power of attorney?
Not necessarily but a solicitor has wide knowledge of the law and once they know about your particular circumstances they will be able to advise you accordingly on the most appropriate options. A power of attorney is an important legal document providing extensive powers to the attorneys so like any major legal decision, it is always best to instruct an expert.
Why do I need a will?
If you don’t make a will you will have no say in who should inherit your estate (the beneficiaries) or who administers your estate after you have died. The rules of intestacy will govern who receives your estate.
Do I need to change my will if my circumstances change?
You should review your will every year. You do not need to change the will if you move house but if your financial circumstances change or you buy a property (especially overseas) your will should be reviewed to determine whether it will cover the property upon your death.
You should review if there has been a change of family circumstances such as a marriage, a birth or a death, and also if there has been a change in your relationship such as a separation or divorce. Finally, if you have bequeathed a specific sum of money to an individual you must ensure there are sufficient funds in your estate to ensure the bequest does not fail.
Where should a will be stored?
In a secure place so that it is safe from being lost, burnt, stolen or destroyed. It is also important not to attach anything to the will with paperclips or staples since the courts will need to ascertain what might have been attached before dealing with it. Contact us for details of our safe will storage.
Who should I choose as executors?
You must choose someone over the age of 18 and preferably someone you can trust and who has not got a criminal record for dishonesty. Ideally, you should choose at least two executors and it would be helpful if one of them had knowledge of your estate. Also, one of the executors should have the ability to manage the administration of the estate as it can take up to 12 months to complete. For this reason, many people choose a solicitor to act as one of the executors. Please contact us for further details about this.
What’s involved with being an executor?
Executors are responsible for dealing with the deceased’s estate. This can involve obtaining a Grant of Administration (Probate where there is a Will and Letters of Administration where there is not). Executors have a duty to act in the best interests of the estate and its beneficiaries and act reasonably.
I feel unfairly treated after finding out that I am not going to be a beneficiary under a will. Is there anything I can do?
It depends upon the circumstances. If you are a child of the deceased you may have a potential claim but the rules are complicated and you should seek advice. If the personal lacked mental capacity at the time of making the will or was subjected to undue pressure then the will may be invalid and you would need to take legal advice.
If you have reason to contest the will then there are several options available including preventing probate from being granted until the dispute is resolved.
What is probate?
Probate involves administering the estate of the deceased person. Technically, it means there is a will involved, but it is used a general term for dealing with estates (it is called a Grant of Letters of Administration where the deceased did not have a will) It involves an application to the Probate Registry who will issue a document called a Grant of Probate. The executors must realise the value of the assets for example, by selling property and possessions, settle any debts and ensure the beneficiaries receive their inheritance.
Do I have to get probate?
It depends on the circumstances and the value of the estate. A bank might require a copy of the grant of probate if the amount of money in the account exceeds £5,000 but it varies from bank to bank. It will not be necessary if there was a joint bank account because the money goes automatically to the joint account holder. In most circumstances a Grant of Probate is required.
Do I need to appoint a solicitor to deal with probate?
Not necessarily as it depends upon the circumstances. Generally speaking, in very simple situations then a solicitor is not necessary, but it is a time consuming process and can be complicated to deal with for relatives who are grieving. It is advisable for a solicitor to be instructed if inheritance tax needs to be paid, if no will has been left (died intestate), if a beneficiary is a charity or if the will is likely to be contested.